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FILED: KINGS COUNTY CLERK 10/04/2013 INDEX NO /2012 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 10/04/ PDF

FILED: KINGS COUNTY CLERK 10/04/2013 INDEX NO /2012 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 10/04/2013 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ELVIRA FERNANDEZ as the legal guardian and
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FILED: KINGS COUNTY CLERK 10/04/2013 INDEX NO /2012 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 10/04/2013 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ELVIRA FERNANDEZ as the legal guardian and representative of JOSE M. ADAMES, Plaintiffs, Index No.: /12 -against- JUSTO GARCIA and AMERICARE, INC., Defendants. REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF DEFENDANT JUSTO GARCIA S MOTION TO DISMISS THE FOURTH CAUSE OF ACTION OF THE AMENDED COMPLAINT Savvas A. Foukas Josiah S. Trager Jason E. Zakai HUGHES HUBBARD & REED LLP One Battery Park Plaza New York, New York Telephone: (212) Attorneys for Defendant Justo Garcia 2 PRELIMINARY STATEMENT Plaintiffs Memorandum of Law in Opposition to Mr. Garcia s Motion to Dismiss the Fourth Cause of Action of the Complaint should not be considered as it was filed more than two months after the deadline set by the Court. 1 Even if it were considered, Plaintiffs have failed to provide any legal basis for permitting the duplicative intentional infliction of emotional distress claim to proceed. I. THE AMENDED COMPLAINT FAILS TO STATE A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS Plaintiffs do not dispute the standard for pleading an intentional infliction of emotional distress claim under Howell v. New York Post Co., which is rigorous, and difficult to satisfy. 81 N.Y.2d 115, (1993). See Pls. Opp. at 1. Moreover, while unsuccessfully attempting to distinguish the cases cited in support of Mr. Garcia s motion, Plaintiffs fail to put forth any cases that have upheld any such claims. Rather, the cases cited by Mr. Garcia demonstrate the various types of alleged conduct which this Court and courts throughout New York have held do not satisfy the high standard for extreme and outrageous conduct. See, e.g., Piggott v. City of New York, 2011 WL , at *5 (Sup. Ct. Kings County June 15, 2011) (unpublished opinion) ( a defendant s actions may be ill-advised, inappropriate, irresponsible, insensitive, mean-spirited, unfair and overreactive, yet still not be actionable [e]ven if the conduct alleged actually causes, or is meant to cause, some measure of emotional harm or injures a plaintiff s sense of well-being ). Plaintiffs fail to recognize that the cases cited by Mr. Garcia involve alleged physical conduct, and conduct which would cause plaintiffs to fear for their own safety, such as assault, 1 Pursuant to the Order signed by the Court on June 18, 2013, Plaintiffs were given an opportunity to submit a memorandum of law by July 8, (See Decision and Order on Motion, NYSCEF Doc. No. 24). Yet Plaintiffs did not do so until September 20, 2013, and no explanation at all was given for its untimely filing. 3 battery or false imprisonment, as alleged here. Alleged conduct consisting of advancing on plaintiffs, shouting obscenities, and ramming and butting plaintiff with chest and abdomen has been found to be insufficient under the standard. See Shenandoah v. Hill, 799 N.Y.S.2d 892, 897 (Sup. Ct. Madison County), modified, No , 2005 WL (Sup. Ct. Madison County Sept. 8, 2005), aff d as modified, 28 A.D.3d 919 (3d Dep t 2006). See also Campoverde v. Sony Pictures Entm t, No. 01 CIV (LAP), 2002 WL , at *12 (S.D.N.Y. Sept. 30, 2002) (claim dismissed where defendants were allegedly abusive and threatening, kept plaintiffs behind a shut and guarded door, refused to let [plaintiffs] leave, and threw plaintiffs out onto the street ); Herskovitz v. Equinox Holdings, Inc., No /2013, 2013 WL , at *9 (Sup. Ct. N.Y. Cty. June 3, 2013) (dismissing negligent infliction of emotional distress claim where the alleged conduct caused plaintiff to have feared for her own safety). Cases involving a vulnerable plaintiff or a relationship of trust or care between plaintiff and defendant have also failed to satisfy the strict standard. The Court of Appeals dismissed a claim against a rabbi who allegedly engaged in a sexual relationship with a vulnerable plaintiff seeking his advice and counsel, and who allegedly intimidated her about disclosing their arrangement an important fact Plaintiffs fail to mention in their papers. Marmelstein v. Kehillat New Hempstead: The Rav Aron Jofen Cmty. Synagogue, 11 N.Y.3d 15, (2008). See also Stella v. County of Nassau, 71 A.D.3d 573, 574 (1st Dep t 2010) (allegations that a mother and her children were illegally evicted, and their possessions ransacked, among other things, were not sufficiently extreme and outrageous); Sheila C. v. Povich, 11 A.D.3d 120, 131 (1st Dep t 2004) (allegations that a teenager who was told to dress promiscuously and then introduced her to the assailant who allegedly raped her did not rise to sufficient level to sustain claim). Here, as in all of those cases, the alleged conduct does not satisfy the rigorous standard 4 for extreme and outrageous conduct, and the claim should be dismissed pursuant to CPLR 3211(a)(7). II. THE CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS SHOULD BE DISMISSED AS DUPLICATIVE OF THE OTHER CAUSES OF ACTIONS ALLEGED Plaintiffs are unable to cite any authority that challenges the well-established rule in New York and in the Second Department that claims for intentional infliction of emotional distress may be dismissed where other, more traditional causes of action for tortious conduct, such as assault, battery, and false imprisonment, are also alleged. See Leonard v. Reinhardt, 20 A.D.3d 510, 510 (2d Dep t 2005) ( cause of action alleging intentional infliction of emotional distress should have been dismissed as duplicative of the causes of action alleging malicious prosecution and assault and battery ); Rodgers v. City of New York, 106 A.D.3d 1068, 1070 (2d Dep t 2013) (intentional and negligent infliction of emotional distress claims were duplicative of causes of action for false arrest and false imprisonment, malicious prosecution, assault and battery). See also Fischer v. Maloney, 43 N.Y.2d 553, 558 (1978) ( [I]t may be questioned whether the doctrine of liability for intentional infliction of extreme emotional distress should be applicable where the conduct complained of falls well within the ambit of other traditional tort liability. ); Campoverde, 2002 WL , at *12 (dismissing claim where the basis for plaintiffs intentional infliction of emotional distress claim may be remedied through their assault and battery and false imprisonment claims ). It is irrelevant that the causes of action alleged here each have their own elements and requirements. The allegations in the Amended Complaint of assault, battery and false imprisonment all arise from the same set of alleged facts as the intentional infliction of emotional distress claim. Accordingly, this cause of action should be dismissed as duplicative. 5 CONCLUSION For the foregoing reasons, the cause of action for intentional infliction of emotional distress should be dismissed. Dated: October 4, 2013 HUGHES HUBBARD & REED LLP By: /s/ Jason E. Zakai Savvas A. Foukas Josiah S. Trager Jason E. Zakai One Battery Park Plaza New York, New York Telephone: (212) Attorneys for Defendant Justo Garcia
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